Submitted by Gene Howington, Guest Blogger
In 1780, John Adams succinctly defined the principle of the Rule of Law in the Massachusetts Constitution by seeking to establish “a government of laws and not of men”. This reflects the democratic principles enshrined in the Constitution’s preamble: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The very foundation of our legal system says that the law should work for us all, not just a select few.
This raises the question of what is a good law that serves the majority of society and what is a bad law that doesn’t serve the majority of society?
This idea is further bolstered by the Equal Protection Clause of the 14th Amendment:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The latter addition of the 14th Amendment as well as the Preamble of the Constitution both reflect the spirit in which this country was founded as set forth in the Declaration of Independence: “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Clearly, the pursuit of the Rule of Law under the Constitution as informed by the Declaration is a pursuit of the Utilitarian concept of the right course of action is the one that maximizes the overall good consequences of an action; what is in the best interest of greatest numbers of We the People is in the best interests of the country.
Utilitarianism is a quantitative and reductionist philosophical form. Utilitarianism, however, is not a unified philosophical view. It comes in different flavors with the two primary flavors being Rule Utilitarianism and Act Utilitarianism. Strong Rule Utilitarianism is an absolutist philosophical view and rules may never be broken. Like any absolutist view does not take into account that reality occasionally presents situations where breaking a rule results in the greater good. For example, the strong reductionist rule that murder is bad is countered by the exceptional example of murder is not bad if performed in self-defense or the defense of others. This result of practical application is reflected in what John Stuart Mill called Weak Rule Utilitarianism. It becomes apparent that since not all rules are absolutely enforceable when seeking the common good and exceptional circumstances require flexibility in the law, that the Utilitarian pursuit of the Rule of Law must be in Mill’s Weak Rule formulation of Utilitarianism. But is considering the greater good and circumstantial reasons for breaking or modifying rules the best way to judge whether a law is good or bad?
If one considers Kant’s Categorical Imperative – “Act only according to that maxim whereby you can, at the same time, will that it should become a universal law.” – then any law not universally applicable should not be a maxim worthy of being recognized as universal. This is contrary to Utilitarianism in general as well as Weak Rule Utilitarianism specifically, but while Kant’s view takes subjectivity into account when dealing with circumstances it does not take into account that there can be objective differences in circumstances as well. It is part of the judiciaries role as a trier of fact to consider not only subjective differences but objective differences in circumstances in formulating the most equitable and just solution to a case at bar. In seeking to be universally applicable in defining maxims, Kant is an absolutist as surely as Strong Rule Utilitarians are absolutists. As a consequence of reality not being neatly binary in nature and thus not often compatible to absolutists approaches to formulating laws for practical application, what can be done to keep Weak Rule Utilitarianism from degenerating into Act Utilitarianism where actors will seek the greatest personal pleasure when presented with a choice rather than the greater good? Utilitarianism conflicting with the Categorical Imperative? Is there a unitary philosophical approach to evaluating whether a law is good or bad?
The answer seems to be no. If there is no single view, absolutist or otherwise, that leads to a practical system for evaluating whether a law is good or bad, then there is only one option for building a framework for evaluation. That option is synthesis.
Consider that absolutist systems as they are not applicable in reality should be confined to being considered theoretical boundaries rather than practical boundaries. This does not negate the value of considering systems like Strong Rule Utilitarianism or Kant’s Categorical Imperative, but rather puts them in the place of aspirational goals rather than practically attainable goals in every circumstance. Given that Mill’s Weak Rule Utilitarianism can degrade into Act Utilitarianism and that degeneration can be compounded by the number of exceptions there are to a rule, are there ways to minimize the defects of using only Weak Rule Utilitarianism to determine the societal value of a law? What supplements can be made to that framework?
I submit that one such supplement is found in the form of Negative Utilitarianism. Negative Utilitarianism is exactly what it sounds like; the inverse function of Utilitarianism. Whereas Utilitarianism is the basic proposition that the right course of action is the one that maximizes the overall good consequences of an action, Negative Utilitarianism is the basic proposition that requires us to promote the least amount of evil or harm, or to prevent the greatest amount of suffering for the greatest number. If one takes both into account in evaluation of the social value of a law (a synthetic approach), the test becomes a balancing act. On one side of the scale is the societal value of overall good consequences, on the other side is the societal value of preventing overall harm. This proposition suggests the following framework for evaluation of whether a law is good or bad.
- How many people benefit from the good consequences of a law?
- How many people benefit from the reduction of harm as consequences of a law?
- Does the benefits from promoting good consequences outweigh the costs of reduction of harm?
- Does the benefits from reducing harm outweigh the costs to the greater good in taking no action?
- Are the net consequences of a law perfectly knowable from either perspective or does the possibility of unforeseeable consequences exist? Can the unforeseeable risks be minimized either by construction of the law(s) to allow for contingencies or by regulating other risks or contributing factors?
- Do solutions from either perspective negatively impact human and/or civil rights? Do those negative impacts outweigh the positive effects to the greater human and/or civil rights of all?
This is but one way to evaluate whether a law is good or bad for society. What are other methods? Are there ways to improve this method? What do you think?
Gene H.
>I don’t take any extremists seriously
That seems…extreme. Shouldn’t a compromiser compromise w/some extremists? Neville Chamberlain did in Munich, 1938.
KD the entertainer….. Said
Private = not public
The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.
I am sorry if you do not understand that if you shoot a bullet on your property and it lands on my property it is still private…..But laws are in place to deal with your type of behavior….I agree, if you want to fuck your sheep…by all means do it….They are your sheep and if you give Roco, Jstol gives you permission then so be it….But other than that it is still private property and not only have you committed some type of trespass but you have also committed a crime against nature called bestiality…Which still can be prosecuted in and of itself…..But you say government shouldn’t regulate private acts on private property….Hmm….get back to the pipe….
Oh, look, Mespo’s come out to play again with his conspiracy theories still intact. That’s nice.
kderosa:
Jefferson said this:
“The idea is quite unfounded that on entering into society we give up any natural rights”
roco’kderosa:
As has been pointed out here, you are one in the same person. Do you enjoy talking to yourself. If so, here’s some help:
http://www.schizophrenia.com/earlysigns.htm
@KD: I do not believe in “natural” rights, it is a philosophy I reject. There are no natural rights; the gazelle has no rights against the cheetah, or the sparrow against the hawk. All rights are a product of man’s mind and imagination, all rights are grounded in the threat of forceful retaliation by a group against an individual: A murder is not punished by the victim, it is punished by others.
Rights are not a product of nature, are not enforced by nature, and are freely ignored by nature: The flood does not care if you deserve to drown. Any rights you call “natural” are false advertising and an appeal to inevitability (nature) that does not exist.
The state has the right to regulate what goes on in Public, even the morals of the community.
*******************
The Republicon horde (Haggard, Schwarzenegger, Craig, Lukens, Livingston, Ryan, et other sickos) had better hope that’s not true.
http://www.correntewire.com/refresh_your_memory_the_gop_has_always_been_the_party_of_perverts
kderosa:
“You really don’t know your Locke do you?”
no he doesn’t and he says he knows Jefferson. But I don’t know how you can understand Jefferson without first understanding Locke.
the problem is his public school education, he was taught in the vein of Rousseau and not Locke. I have tried on very many occasions to try and get him to understand he is a tool of the left. They have left him out on a limb with no safety net.
I don’t know where you went to school but there is a good deal to be critical of in a public school education. These progressives have so brainwashed the masses that even the best of them believe that horseshit and write about utilitarian laws without thought to the consequences.
we take a little from this code and something from that code, kinda combine them and take out what might not make sense. Then we say some sort of inKantation over them and there’s your law.
But since we don’t have any standards due to our progressive education we cannot with any certainty say what makes sense and what doesn’t.
It is actually kind of scary to think there are people like Gene H currently sitting in congress and making up laws in that manner. No wonder the country is such bad shape.
@TonyC
You are getting confused with all this morality talk. Just think of natural rights.
The law against murder may be a morality law, but it’s also a violation of someone else’s natural rights.
Also you are forgeting about liberty. Bothe liberty and property are part of naturl rights.
There is a distinction as to private activity as Locke sets forth ans it is an important distinction.
Murder in private or public, rape in private or public are all wrongful acts that a state may prohibit because you are violating the natural rights of anotyher citizen by the commission of these acts. Contrast this with private masturbation or Sodomy as Buddha points out which are only preoperly prohibited when done in public, but not in private becasue there are no rights being violated 9assuming there is consent).
An employer injuring an employee is a violation of the employee’s rights. No one seriously believes otherwise, not even Objectivists.
Private = not public
The state has the right to regulate what goes on in Public, even the morals of the community. Otherwise, if you aren’t infringing upon anyone else’s rights in the course of your private activity, then you have not surrendered these rights to Government to regulate/prohibit.
@GeneH/Buddha
Regulated as in to make regular. Reasonable regulations of liberty are permitted, though the federal Constitution only permits regulation of “commerce” which is more limited. Also, I never said that regulations weren’t permitted, that was only one of your strawmen positions. Now whether such regulation is prudent is another matter, but not a natural rights/constitutional one.
Stealing causes a violation of another’s rights. So it is not merely a matter of private morals. Sodomy in the privacy of one’s home is an example of private morals and is not properly prohibited. (See Lawrence v. Texas) Sodomy in the public square is an example of public morals that couls be properly prohibited.
That states have routinely criiminalized purely private moral acts, such as gambling, drug use, alcohol consumption, prostitution, doing busines on the sabbath and other activities that do not violate the rights of others doesn’t mean that such laws are right under Lockean political theory or don’t rample upon our retained rights, knucklehead. Government has exceeded its Constitutional restraints.
States may regulate all wrongful behavior, private or public. Wrongful behavior is behavior that violates another’s rights. You really don’t know your Locke do you?
Then you say this, just like Buddha would have (the mask continues to slip):
First, There is no society. There is just a collection of individuals.
And check you out calling Locke’s reasoning “the facile logic and specious argument of a child or a sociopath.”
The propriety of the laws made by the legislature is dictated by the rationale for yielding the lawmaking power to the government. “…Men, when they enter into Society, give up the Equality, Liberty, and Executive Power they had in the State of Nature, into the hands of the Society, to be so far disposed of by the Legislatuve, as the good of the Society shall require.” This “good of society,” however, is no open-ended grant of power simply to do good; it is defined and limited by the rights retained by the people when they surrender their powers of enforcement, and this is what makes it a genuine comon good or good for everyone, not merely a segment or faction of society. “[I]t being only with an intention in every one the better to preserve himself in his Liberty and Property; (For no rational Creature can be supposed to change his condition with an intention to be worse), the power of Society, or Legislative constituted by them, can never be suppos’d to extend farther than the common good.” And to secure this “common good,” the legislature “is obliged to secure every ones Property by providing against those three defects… that made the State of Nature so unsafe and uneasie.”
Those three defects are 1. “the want of an establish’d settled, known Law, received and allowed by common consent to be the Standard of Right and Wrong, and the common measure to decide all the Controversies between them” (Sec. 124); 2. the want of “a known and indifferent judge, with Authority to detemine all differences according to established Law” (Sec. 125); and 3. the want of the “Power to back and support the Sentence when right, and to give it due execution” (Sec. 126).
So according to Lockean political theory, then, becasue people form government to secure their rights of liberty and property more effectively than they can secure them in their own, the executive or police power must be limited to the advancement of the common good, which is accomplished by protecting those same retained rights. In this way, Lockean theory provides both a rationale and an important limit upon the powers of governent.
The police power is the legitimate authority of states to regulate rightful and prohibit wrongful acts. As Hamilton expaalined in Federalist No. 17, “[t]he administartion of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a [national] jurisdiction.”
natural rights define the boundary or space within which people are at liberty to do as they please provided their actions do not interfere with the rightful actions of others operating within their own boundaries or spaces. Just as it is proper to prohibit wrongful or rights violating conduct, proper police power regulations specify the manner in which persons may exercise their liberties so as to prevent them from accidentally interfering with the rights of others.
I can go on, but I think you get the point. Actually, you probably don’t. but other do. That’s why I take you seriously GeneH/Buddha, it is just too easy to show how wrong your dopey theories are.
Gene H:
But how do you know it is a candle that is on the other side of my head? And not the light of my intellect?
Gene H:
and how do you know unlit candles emit no light?
@kd: were the state allowed the power to prohibit any purely private activity on the sole ground that a majority of the legislature deems it to be immoral,
All laws are morality laws. The law against murder is a morality law. You may prefer to think of yourself as property, but then your claims of “property rights” are not based in anything but morality either. The distinction of a “private” activity, as Gene notes, means nothing. You cannot commit murder in private, or rape in private. Heck, most planned crimes are at least attempted to be done in privacy, to evade detection.
All laws legislate morality; the only question is where do we draw the line on legislating morality? I think it is immoral for an employer to know they are endangering workers and withhold that information because it would increase their costs. Objectivists apparently think this is fine, and the workers will figure it out if enough of them get killed.
Because unlit candles emit no light.
noway:
that guy sure can dance. But he doesnt go anywhere.
Gene H:
“I have seen the light. It’s shinning out of your ear from the candle on the other side of your head.”
I like it, very funny.
But how do you know the candle is lit?
By the way, laws against sodomy and masturbation fail the test as good laws and it has nothing to do with their private nature. They fail as good laws because they are not secular in origin but religious prohibitions in origin, they are unenforceable, they are contrary to what science tells us about human nature and they harm no one as long as they are consensual. I still would discourage you from trying either in public though. Public sodomy and masturbation are generally illegal for quite valid reasons.
[youtube http://www.youtube.com/watch?v=ACpNVD5GMUw&w=425&h=349%5D
kderosa,
You should know better than to forget to precisely define what you mean by “private”. I’m sure that you consider a private act to be that which takes place on private property, involving only consenting adults. That would negate Gene H’s claim that stealing is included in your definition of a private act.